When litigation is possible or pending in a federal case, the litigants should take care to instruct those in possession of documents and especially electronically stored information to preserve and prevent loss of such documents. If the litigation has begun, or is reasonably anticipated, lawyers should send a letter by way of email or written notice to the other side to put them on notice that there is a duty of preservation that has been triggered. They should also describe the electronically stored information believed to be relevant in a case that should be preserved.
The newly amended Rule 37(e) authorizes what measures the courts can use if the electronic information that should have been preserved has been destroyed or lost.
Amended Rule 37(e) provides:
Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions